State v. Clokey

• Decision Date: 22 June 1961
• Docket Number: No. 8912,8912
• Citation: 83 Idaho 322,364 P.2d 159
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert CLOKEY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 159

364 P.2d 159

83 Idaho 322

STATE of Idaho, Plaintiff-Respondent, v. Robert CLOKEY, Defendant-Appellant.

No. 8912.

Supreme Court of Idaho.

June 22, 1961.

Rehearing Denied Sept. 5, 1961.

Charles S. Stout, Charles F. Reddoch, Boise, for appellant.

Frank L. Benson, Atty. Gen., Dwight F. Bickel, William E. Swope, Warren Felton, Asst. Attys. Gen., Wm. C. Roden, former Pros. Atty., Ada County, Boise, for respondent.

KNUDSON, Justice.

On October 30, 1959, appellant went to the home of his divorced wife, Betty Clokey, at three different times, the first time being about 3:00 o'clock P.M. Appellant stated that his reason for going to said home at that time was to check with his son regarding a hit and run charge which had been filed against appellant. Upon arriving at Mrs. Clokey's home he found her preparing to move to California, and observed that she was being assisted by her aunt, Florence Schleuse, and husband, Carl Schleuse. Appellant remained at said home approximately 15 minutes. He then went to the Sailor's Bar and from there to a business house known as Bill's Bargains on Vista Avenue in Boise where he inquired about renting a .22 caliber pistol. He was unable to rent such a gun at said place of business, however the proprietor telephoned another place also known as Bill's Bargains situate on Orchard Avenue and appellant was informed that the Orchard Avenue place of business had the caliber gun he wanted. Appellant later rented a .38 caliber pistol and purchased ten cartridges from Bill's Bargains on Orchard Avenue. Appellant put the gun in the glove compartment of his car and the cartridges in his pocket. He returned to Mrs. Clokey's home at about 5:00 P.M. for the purpose of saying goodbye to his daughter, Ketrice, and Mrs. Clokey. Mr. and Mrs. Schleuse were not present on that occasion. Appellant left Mrs. Clokey's home about 5:30 P.M. and again returned between 6:45 and 7:00 P.M. The purpose of his return, according to appellant, was to get someone to give his stalled car a push to get it stated.

Appellant acknowledges that he removed the gun from the glove compartment of his car and put it in his pocket before he started his return to Mrs. Clokey's home. Appellant also acknowledges that upon his return he shot at Carl Schleuse shortly after meeting him at the Clokey premises and denies that he remembers any events from that time until he awakened in the hospital. About 7:00 P.M. on that date at the Clokey residence a neighbor heard five gunshots. Shortly thereafter officers arrived at said residence and found the bodies of Betty Clokey, Florence Schleuse and appellant on the ground near a large tree in the Clokey yard. Betty Clokey was dead and Florence Schleuse was mortally wounded as a result of gunshot wounds. Carl Schleuse and appellant were both seriously injured by gunshot wounds. Appellant was lying on the ground unconscious with a .38 caliber pistol in his left hand.

Appellant was charged with first degree murder for the killing of Florence Schleuse. After trial in the district court the jury returned a verdict of guilty and recommended the death penalty. Accordingly a judgment of conviction was regularly entered wherein it was ordered that appellant suffer death in the manner provided by law as punishment for said crime. This appeal is from said judgment.

Six of the seven assignments of error relate to instructions which were given the jury.

Appellant contends that instruction No. 16 is erroneous, contrary to and against the law in that it (1) sweeps out the appellant's defense of insanity or his mental capacity to co-ordinate upon motive, intent and premediation, and is (2) inconsistent with instructions Nos. 29 and 32 and renders certain other instructions void. Such instruction No. 16 provides as follows:

'The law of this State provides that every person guilty of murder of the first degree shall suffer death or confinement in the state prison for life, and the jury may decide which punishment shall be inflicted. If you should find the defendant guilty of murder of the first degree, you may determine which of the two penalties shall be inflicted, the death penalty or confinement in the state prison for life. In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment.

'In this regard you will recall that evidence was adduced in this case regarding the background and history of this defendant and his experiences and behavior in matters not related to the alleged crime for which he is now on trial; such evidence was not admitted for the purpose of establishing or tending to establish the guilt or innocence of this defendant of any crime charged in the information and may not be considered by you for such purpose, but is relevant and may be considered by you only as it may assist you in arriving at the punishment to be inflicted upon the defendant should you find him guilty of murder in the first degree.'

The first paragraph of said instruction informs the jury that in the event they find the defendant guilty of murder of the first degree they may then determine whether the penalty to be imposed shall be death or confinement in the state penitentiary for life. Such instruction is in conformity with I.C. § 18-4004. Said instruction then calls attention to the evidence which was adduced during the trial regarding the background and history of the defendant and his experiences and behavior in matters not related to the alleged crime for which he was being tried.

In this connection evidence was introduced by and on behalf of appellant showing appellant's place and date of birth; that his father died when he was between five and seven years of age; that his mother remarried and he was raised with six half-brothers and sisters; that he quit school when he was seven years old; that he was mistreated when a boy at home; that in 1929 he was found guilty of first degree robbery and as punishment therefor served three years and seven months in San Quentin prison; during the years that followed he worked at four or five different trades or occupations; that he suffered a serious accidental injury while working in the mines; that he had been convicted of reckless driving and drunken driving during the past two years and that he had a hit and run charge pending at the time of this trial; that his son became involved in trouble and was committed in the Industrial Training School at St. Anthony, Idaho; that after the son returned to the home appellant and his son got into a fight, shortly after which his wife, Betty Clokey, obtained a divorce.

Such evidence is unrelated to the crime here charged and it is such evidence of biographical facts that the court refers to in said instruction No. 16. It is evidence regarding the background and history, the experiences and behavior of appellant which the jury may consider only as it may assist them in arriving at the punishment in the event the jury finds defendant guilty of murder of the first degree.

One of the reasons for permitting the introduction of evidence of biographical facts where such facts are unrelated to the offense charged is that the law recognizes that previous good or bad conduct should be considered in fixing punishment for crime. Our statute provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment as follows:

'After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.' I.C. § 19-2515.

I.C. § 19-2516 requires that the hearing be had in open court.

This Court has considered the language used in I.C. § 19-2515 and has stated that:

'It may be open to debate as to whether the 'circumstances' mentioned in § 19-2515, I.C., refer particularly to circumstances surrounding the commission of the crime and tending to aggravate or mitigate the character of the conduct involved, or whether such circumstances include also the convict, himself, as an individual, which would include his background, his age, upbringing and environment or any other matter appropriate to a determination of the degree of culpability. We think that the statute should be given the broader interpretation, particularly in a capital case. James v. State, 53 Ariz. 42, 84 P.2d 1081.' State v. Owen, 73 Idaho 394, 253 P.2d 203, 207.

This Court has also determined that in cases where the jury may fix the punishment it should have opportunity, under proper instructions, to consider circumstances in aggravation or mitigation of the punishment. In State v. Owens, supra, this Court said:

'It, therefore, appears that the law contemplates that in fixing the penalty, the court, when requested by either party, may and should hear and consider circumstances in aggravation or mitigation of the punishment. It logically follows that if it is proper for the court to hear and consider such evidence, the jury where it is called upon to fix the punishment, should have the opportunity to consider such proof, subject of course, to a proper instruction limiting the jury's consideration of such evidence to the determination of punishment, and cautioning that it is not to be considered in determining guilt or innocence, or be allowed to influence the determination of that question.'

We do not hold that evidence relating to biographical facts should be considered solely in connection with determining the punishment to be imposed in every case. However, we do conclude that under the facts in the instant case the instruction complained of was in no respect prejudicial to appellant for the reason that the biographical...